The dictionary defines a Hail Mary Pass as a long forward pass in football where completion is considered unlikely. Volkswagen’s Hail Mary Pass is appealing maintenance workers’ union representation victory to the federal courts. Volkswagen’s appeal will almost certainly fail since every appeals court that’s considered such a case has rejected Volkswagen’s position.

The news outlet Reuters reported last month that Volkswagen faces a bumpy road in their court challenge. (read the article here) They say that experts predict Volkswagen’s legal strategy will fail, noting “every appeals court to consider a case under a standard backed by the National Labor Relations Board (NLRB) has sided with unions, including five this year.”

So why would Volkswagen use this delay tactic, since they are almost certain to lose and have to sit down and negotiate a collective bargaining agreement? Reuters notes that “with court losses piling up, the business lobby is backing a stalled effort by Republicans in Congress to reinstate a previous, more business-friendly standard for scrutinizing proposed units of workers.” However, this would require that Republicans hold onto Congress in the November 8th elections, and that Donald Trump wins so that such legislation isn’t vetoed.

Who would have known that Volkswagen has such high stakes in our national elections?

When the Jump Start reported on September 22nd that ACE had been disqualified under the

COE policy, it did not come as shocking news. The group had clearly been on life support for some time. It was not surprising that an organization funded by outside anti-union business groups with no positive message of growth or change, would not appeal to most people. But where did ACE come from in the first place

ACE grew out of the network of outside political and business groups that oppose union representation. Its registered agent is Maury Nicely who was formerly Volkswagen’s in-house counsel for human resources at our plant. He created the group “Southern Momentum” in January 2014 and coordinated his anti-union activities with Senator Bob Corker’s office, Governor Bill Haslam’s administration, former manager Don Jackson, and anti-union consultants. After the narrow loss in the February 2014 union election, Nicely’s law firm, Evans Harrison & Hackett, registered ACE as a Tennessee corporation with the Secretary of State on October 21, 2014.ACE was never able to get traction in the plant. They would never disclose their sources of funding, which led to speculation that they were colluding with anti-union politicians. After all, Nicely himself once told the Associated Press “this sounds almost silly, but ACE is a nonunion union.”

When sixty-one members of Congress wrote to Christian Koch and Sebastian Patta to express their concern about the company’s defiance of the U.S. National Labor Relations Board (NLRB), they asked them to respond and explain their behavior. After nearly two months Congress has finally received a response, not from Koch and Patta, but from the company’s lawyer David Geanacopoulos in Virginia.

The letter doesn’t answer the question that Congress put to them, specifically, why Volkswagen has ignored the democratic vote of its employees and the decisions of the U.S. National Labor Relations Board. Despite Mr. Geanacopoulos’s claim that “Volkswagen respects the right of our employees to decide the question of union representation,” the facts are pretty simple and clear: in December 2015 skilled trades employees decided to choose union representation with Local 42; Volkswagen has not respected that decision.

Criticism continues to mount over Volkswagen’s behavior in refusing to honor the decision of Chattanooga skilled trades employees to choose Local 42 for collective bargaining. This time the criticism came in Volkswagen’s back yard, when the widely-read German newspaper Die Welt published lengthy comments from U.S. Labor Secretary Thomas Perez over the company’s disregard for U.S. laws – both in the emissions cheating scandal and the defiance of NLRB orders regarding Chattanooga.

Perez expressed his strong disapproval of Volkswagen’s behavior, saying “it seems like they make one bad decision after another.” He noted that rather than apply common sense, the company seems to be getting advice from its lawyers to stall and delay. “Their [Volkswagen’s] current strategy might in the short run buy VW time in the courts,” Perez said, “but every day that passes adds another dent on the image of Volkswagen.”

Perez said he is puzzled as to why Volkswagen is prolonging the inevitable, when they must sit down and negotiate a collective bargaining agreement. “People will look at Volkswagen and see a company that cheated when it comes to emissions and now refuses to negotiate with its own employees. I do not think it is an image that you want to portray if you aim to increase your market share in America.”

You can view the original story (in German) as it appeared in Die Welthere, and read the English translation here.

In a unanimous decision, the National Labor Relations Board (NLRB) has ordered Volkswagen to come to the bargaining table and negotiate a collective bargaining agreement with Chattanooga skilled trades employees represented by UAW Local 42. For nine months, since December 2015, the company has attempted to ignore its obligation to negotiate. UAW Secretary-Treasurer Gary Casteel said “this unanimous decision makes it clear that the company has been operating in violation of federal law by refusing to come to the bargaining table.”

Skilled trades member Steve Cochran, who is Vice President of Local 42, expressed hope that the company would comply with the new order. “Together, Volkswagen and Local 42 can negotiate an agreement that works for all parties and keeps the plant moving forward,” he said.

Volkswagen appealed the vote to the NLRB last December, after employees voted by more than 70% for Local 42. The NLRB dismissed that appeal in March but VW still refused to negotiate. Local 42 filed charges over the company’s failure to bargain, as required by U.S. labor law. This new decision is in response to those charges, and makes clear that our 2015 election was proper and obligates Volkswagen to negotiate a contract with Local 42.

IG Metall, the union representing all Volkswagen workers at its plants in Germany, called on the company to act. “IG Metall President Joerg Hofmann is calling for VW to no longer act contrary to American labor law, and to seek talks with UAW without delay,” the union said in a statement.

8/12/2016: In a July 9 letter to CEO Christian Koch and HR Director Sebastian Patta, 61 members of Congress voiced their support for all parties in Chattanooga bargaining in good faith, and called on Volkswagen to respect the rights of maintenance employees who elected UAW Local 42. (see the letter here)

The elected representatives voiced their concern that Volkswagen has adopted a tactic of delay to frustrate the vote of the employees, who chose the union by more than 70%. “In our opinion”, they said “we believe that when labor and management bargain in good faith, the best outcomes are realized for all parties.”

The members of Congress noted the serious nature of the issues involved and “the potential impact they could have on relations between Germany and the United States.” They asked Mr. Koch and Mr. Patta to respond to them on each of the concerns they raised. As of August 12, there was no response.

8/12/2016: Volkswagen workers around the world are united behind UAW Local 42. IndustriALL, the federation of auto worker unions from across the globe, called out Volkswagen for ignoring the democratic vote of maintenance employees here in Chattanooga. They took the unprecedented step of filing a formal complaint (see letter here) against Volkswagen, under the Declaration on Social Rights and Industrial Relationships, which VW signed with IndustriALL and the Volkswagen Global Group Works Council in 2002. Volkswagen has never had a complaint filed against it in its history.

The IndustriALL action came after UAW Secretary-Treasurer Gary Casteel described the deceptive behavior of Volkswagen in opposing the December 2015 vote of maintenance workers. “The tricks and tactics in the south of the U.S. won’t remain there,” he said. “They will be coming to you soon.” The delegates noted that Volkswagen had hired a high-dollar “union avoidance” law firm to represent them and attempt to keep the maintenance employees tied up in court.

Volkswagen says they object to the separate vote for maintenance employees because it would “fracture” the workforce. But in a series of appeals court decisions from all across the U.S., separate bargaining units are found to be perfectly legal and the position taken by VW has been rejected.

12/22/2015: The UAW today released the following statement after filing charges with the National Labor Relations Board (NLRB) stipulating that Volkswagen Group of America is violating the National Labor Relations Act by refusing to enter into collective bargaining with skilled-trades employees at the company’s Chattanooga facility.

Gary Casteel, Secretary-Treasuer of the UAW and director of the union’s Transnational Department, said: “The NLRB determined that Volkswagen’s skilled-trades employees constitute an appropriate collective bargaining unit, then supervised a fair election, and then promptly certified the results. Volkswagen’s skilled trades employees voted overwhelmingly to designate UAW Local 42 as their representative for the purposes of entering into collective bargaining, which is a very common practice between employees and employers. Following this month’s election, we were hopeful that the company would accept the results and recommit to the principles of social responsibility that made Volkswagen a respected global brand. Instead, Volkswagen has refused to come to the bargaining table in violation of federal law. By refusing to engage in collective bargaining after a successful election, Volkswagen is not only doing a disservice to its employees but now is thumbing its nose at the federal government as well.”

Editor’s note: The NLRB describes collective bargaining as an effort between an employer and employees to “bargain in good faith about wages, hours, vacation time, insurance, safety practices and other subjects.”

12/4/2015: Skilled trades employees at Volkswagen’s Chattanooga plant have voted overwhelmingly to designate UAW Local 42 as their representative for the purpose of initiating collective bargaining.

In a two-day election on Thursday and Friday, 152 skilled trades employees cast ballots. The National Labor Relations Board (NLRB), which supervised the election, confirmed that 71% of employees voting favored recognition for Local 42. Federal law provides for units within a workforce to seek recognition for the purpose of achieving collective bargaining.

“A key objective for our local union always has been moving toward collective bargaining for the purpose of reaching a multi-year contract between Volkswagen and employees in Chattanooga,” said Mike Cantrell, president of Local 42. “We have said from the beginning of Local 42 that there are multiple paths to reach collective bargaining. We believe these paths will give all of us a voice at Volkswagen in due time.”

Cantrell reiterated that the timing of the skilled trades election is unrelated to the Volkswagen emissions scandal. In its election petition to the NLRB, Local 42 noted that its members asked Volkswagen to recognize the local union as the bargaining representative of skilled trades employees in early August — more than a month before the emissions scandal was revealed.

Looking ahead, Cantrell said Local 42 will communicate immediately with Volkswagen leaders — in the U.S. and Germany — about initiating collective bargaining for the skilled trades employees at the earliest possible date.

Collective bargaining is a common practice between employees and employers in the U.S. The NLRB describes collective bargaining as an effort between an employer and employees to “bargain in good faith about wages, hours, vacation time, insurance, safety practices and other subjects.”

“Volkswagen employees in Chattanooga have had a long journey in the face of intense political opposition, and they have made steady progress,” Curry said. “We’re proud of their courage and persistence. We urge Volkswagen to respect the decision of its employees and recognize the local union as the representative of the skilled trades unit.”

Local 42 has strong support among blue-collar workers in the Chattanooga plant — the only Volkswagen facility in the world that remains unrepresented on the Volkswagen Global Group Works Council, the influential body of employee leaders from around the world.

Gary Casteel, secretary-treasurer of the UAW and director of the international union’s Transnational Department, said the UAW will continue pressing Volkswagen to fulfill an earlier commitment. In spring 2014, Volkswagen agreed to recognize a UAW local union as the representative of its members in order for the union’s members and the company to enter into collective bargaining.

Casteel urged Volkswagen to drop its plans to appeal the outcome of today’s election.

“It’s overdue time for Volkswagen to refocus on the values that made it a successful brand — environmental sustainability and meaningful employee representation,” Casteel said. “The hard-working members of UAW Local 42 stand ready to assist in the Volkswagen comeback story. Our hope is that the company now is ready to move forward in the German spirit of co-determination.”

TIMELINE: UAW LOCAL 42

July 2014: Volkswagen employees form UAW Local 42, a new local union providing representation for employees at the company’s Chattanooga plant. Four days later, Volkswagen announces the creation of 2,000 new jobs through the addition of a new mid-size SUV product line at the Chattanooga plant.

September 2014: The Volkswagen Global Group Works Council, German trade union IG Metall, and the UAW sign a letter of intent declaring their joint desire for Volkswagen’s Chattanooga plant to be a “UAW-represented facility.”

December 2014: Volkswagen verifies UAW Local 42’s membership at the highest level under the company’s new three-tier Community Organization Engagement policy. Local union leaders initiate biweekly meetings with the Volkswagen Human Resources and monthly meetings with the Volkswagen Chattanooga Executive Committee to discuss matters of concern to employees.

April 2015: In a filing with the U.S. Department of Labor, UAW Local 42 demonstrates that its membership constitutes a majority of Volkswagen’s blue-collar workforce in Chattanooga.

May 2015: UAW Local 42 advances a “vision statement” for establishing a German-style works council at Volkswagen’s Chattanooga plant. The 36-page document, based on a framework agreed to by the UAW and Volkswagen in early 2014, outlines a path for meaningful co-determination between employees and management. To date, Volkswagen has not responded to the vision statement.

August 2015: Members of UAW Local 42 ask Volkswagen to recognize the local union as the bargaining representative of skilled trades employees at the Chattanooga plant. The company declines the request.

October 2015: UAW Local 42 files paperwork with the National Labor Relations Board (NLRB) seeking a representation election for employees in the skilled trades unit.

November 2015: The NLRB rules in favor of UAW Local 42 and orders an election for 160 skilled trades employees at Volkswagen’s Chattanooga plant, rejecting an attempt by the company to block the election.

December 2015: Skilled trades employees at Volkswagen’s plant in Chattanooga vote overwhelmingly to designate UAW Local 42 as their bargaining representative.